United States District Court, D. Hawaii
ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT DAVID
VERDEN WILLIAMS'S THIRD MOTION UNDER 28 U.S.C. §
2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; EXHIBITS A
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
court accepted David Verden Williams's plea of guilty to
having committed a bank robbery in violation of 18 U.S.C.
§ 2113(a). See ECF Nos. 68, 69. He was
sentenced on October 7, 2013, to 151 months in custody;
judgment was entered on October 11, 2013. See ECF
Nos. 77, 79.
appealed. See ECF No. 80. On July 29, 2014, the
Ninth Circuit dismissed the appeal, noting that, in his plea
agreement, Williams had waived his right to appeal.
See ECF No. 101.
February 25, 2015, Williams, proceeding pro se,
filed his first § 2255 motion. See ECF No. 107.
The motion was denied by this court on August 12, 2015.
See No. 133.
April 4, 2016, represented by counsel, Williams filed a
second § 2255 motion, challenging Williams's
designation as a career offender under the Sentencing
Guidelines. See ECF No. 136. On May 11, 2016, this
court referred the second § 2255 motion to the Ninth
Circuit pursuant to 28 U.S.C. § 2255(h) and Circuit Rule
22-3(a) for an order authorizing this court to consider the
motion. See ECF No. 147. On September 19, 2016, the
Ninth Circuit authorized Williams to file his second or
successive § 2255 motion. See ECF No. 163. On
March 31, 2017, Williams voluntarily dismissed his second
§ 2255 motion. See ECF No. 181. On September 7,
2017, this court permitted the withdrawal of the § 2255
motion, but informed Williams that any future § 2255
motion would be sent to the Ninth Circuit for the
authorization required under 28 U.S.C. § 2255(h).
See ECF No. 183.
January 25, 2019, Williams, again proceeding pro se,
filed a “Motion for Appointment of Counsel; Motion for
BOP to Recalculate Sentence and Expunge Incident Reports;
[and] Motion for Order for BOP to Give Medical Treatment and
Diagnosis for Undiagnosed Skull Fracture.” See
ECF No. 185. On January 28, 2019, this court asked Williams
to clarify whether he was seeking relief under 42 U.S.C.
§ 1983 or bringing a third motion under 28 U.S.C. §
2255. If Williams wanted to bring claims under § 1983,
the court asked Williams to complete a § 1983 complaint
form that the court provided to him. If Williams wanted to
bring a third motion under 28 U.S.C. § 2255, the court
informed him that he needed to obtain authorization from the
Ninth Circuit. See ECF No. 186.
document filed on February 11, 2019, Williams clarified that
he wanted to proceed with his claims under 28 U.S.C. §
2255. Accordingly, to the extent that his Motion of January
25, 2019, sought relief under 42 U.S.C. § 1983, the
court deems Williams to have abandoned such claims at this
time. To the extent Williams seeks any relief under §
2255, the court refers the matter to the Ninth Circuit for
authorization pursuant to 28 U.S.C. § 2255(h) and
Circuit Rule 22-3(a). Any requested relief from this court,
including William's request for appointment of counsel,
is premature until he receives authorization from the Ninth
Circuit to proceed with his motion under § 2255.
passing the Antiterroism and Effective Death Penalty Act
(“AEDPA”), Congress imposed “significant
limitations on the power of federal courts to award relief to
prisoners who file ‘second or successive' habeas
petitions.” United States v. Lopez, 577 F.3d
1053, 1059 (9th Cir. 2009). In 28 U.S.C. §
2255(h), Congress said:
(h) A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
Ezell v. United States, 778 F.3d 762 (9th
Cir. 2015), the Ninth Circuit said, “Section 2255(h)(2)
creates a jurisdictional bar to the petitioner's claims:
‘If the petitioner does not first obtain our
authorization, the district court lacks jurisdiction to
consider the second or successive application.'”
Id. at 765 (quoting Lopez, 577 F.3d at
court therefore refers Williams's third § 2255
motion to the Ninth Circuit for authorization pursuant to 28
U.S.C. § 2255(h) and Circuit Rule 22-3(a).
Clerk of Court is directed to send a copy of this order to
the Ninth Circuit with Williams's § 2255 motion and
his clarification, ECF Nos. 185 and 188, attached as Exhibits
A and B. The Clerk of Court is further directed to ...